C (A Child): Difficult does not mean appealable

The case C (A Child) [2011] EWCA Civ 72 (not to be confused with C (A Child) [2009] EWCA Civ 72) was an application by a mother for permission to appeal against the refusal of leave to remove her seven year old daughter to Australia. The judge at first instance had come to that decision notwithstanding a Cafcass recommendation that leave to remove be granted. Lord Justice Wilson said that the crucial findings of the judge were as follows:

"If she were permitted to live in Australia, I find that [the mother's new husband] would assume the role of [the child's] father and that, within a short time, [the child's] relationship with her father would be of little value. In my judgment the mother's attitude towards the father combined with the limited direct contact would not permit a relationship between the father and [the child] to be sustained. To lose the significant relationship which she has with her father would not, as I find, be in [the child's] present or future interests and would be inimical to her welfare."

Lord Justice Wilson went on:

"The judge recognised that she was departing from the recommendation of Mrs Nolan [the Cafcass officer] but considered that, unlike herself who had heard evidence over three days, Mrs Nolan had been unable to perceive the strength of the mother's dislike of the father and the impact thereof on his future relationship with the child in the event of a move to Australia. She also found, no doubt by reference to the account of the mother which the judge had not altogether accepted, that Mrs Nolan had underestimated the strength of the past and present relationship between the child and the father."

The Court of Appeal found no arguable ground for appeal and therefore refused the application for permission. Lord Justice Toulson perhaps put it most succinctly in a consenting judgment:

"The Cafcass officer described it as a difficult decision. The judge described it as a difficult decision. The circumstances are difficult for all concerned and especially for the mother, who is naturally very upset by the result. But the fact that it was difficult does not mean that the mother has a real prospect of persuading this court that the decision of the judge, who heard the case and explained her decision in a clear and careful judgment, was wrong."